We were informed that Judge Martinotti, entered two Orders yesterday impacting home owners on the proposed PennEast route:
- Extending Time to Appeal. A motion was filed to request an extension of time to appeal the December 14, 2018 Order. Homeowners are speaking with their attorneys and have until February 13, 2019 to decide if they want to appeal.
- Revised Order. Last week, homeowner attorneys filed objections to PennEast’s suggested Order. Yesterday, the Judge made a decision on the objections.
- Attorneys report that homeowners got most, not all, of what they requested. Cutting back the scope of the easement, restricting the permanent right of way and expressly addressing tree cutting were accomplished.
- The Judge rejected our request for more notice than 48 hours in advance of PennEast or their agents coming on our properties for survey. However, PennEast/Western land have been working with homeowner attorneys to see if they will agree to more advance notice of access and survey. At this point, PennEast/Western Land or their agents can come on homeowner properties on the route with 48 hours’ telephone notice.
- The Judge did say that PennEast and the property owners can seek redress from the US Marshalls. Homeowners should discuss with their attorney under what circumstances US Marshalls should be called.
Also, please note that some surveys and tests are more expansive and will take more than one day (in some cases, two or three days). Again, please consult your attorney for details on your property.
Discussions between homeowners’ lawyers and PennEast are progressing. Here are a few points (please note these are not yet finalized):
- Homeowners on the proposed PennEast should discuss with their lawyers how to make sure that PennEast contractors are holding homeowners harmless for injury to workers.
PennEast agreed to make some changes based upon homeowner lawyers’ objection, including (1) PennEast cannot change the size of pipe, (2) PennEast can only ship natural gas, (3) any above ground facilities are limited to what FERC approved, and (4) tree removal can happen within the ROW – if the pipeline gets built.
However, there are still significant open challenges:
- The language describing permanent easement of ingress and egress is much too ambiguous and broad, despite what PennEast alleges in their letter. PennEast states: “PennEast will enter and exit the properties where the easements meet the edge of the property”. In other words, PennEast has the right to enter and exit the easements, but not to traverse other areas of the properties without owner consent. However, the language they want does not limit the use in the way PennEast alleges.
- Homeowner lawyers requested seven-days’ notice to homeowners, but PennEast is only willing to give 48 hours’ notice.
Hopefully, the Judge will have a call to discuss the open issues and the homeowner lawyers will keep pushing on their clients’ behalf.
HALT was informed that Judge Martinotti entered an Order this week giving PennEast until Monday to respond to the objections that several homeowners filed, and the objections filed by the State and other defendants.
Please note the Judge ordered that: “ The parties are further directed to continue to meet and confer regarding a joint proposed form of order, including exhibit forms.”
This order intends to delineate the scope and protocol of PennEast’s access and survey activities on homeowner properties.
Details will be forwarded as they become available to us – hopefully by next week. Again, directly impacted homeowners should stay in close contact with their attorneys or their other direct sources.
HALT will confirm that date of the next member meeting (tentatively scheduled for Jan 29) as soon as the Court’s decision timetable is clear.
Thank you to all homeowners who are on the front line and continue to deny access and refuse offers!
Thank you to all who contacted the NJDEP this week!
Thank you NJ DEP for doing the right thing and upholding the rules!
In late April, the NJ DEP found PennEast’s application for permits to be incomplete and gave PennEast 60 days to address the lack of information and re-submit. Homeowner’s and others continued to deny access to PennEast and it requested a 60 extension to try and gather the needed information. The DEP said “No Extension”, and deemed the permit application “administratively closed”.
Our communities in both Pennsylvania and New Jersey continue to be united in the fight to stop this unwanted and unneeded pipeline.
Thank you, all for your continued commitment to HALT PennEast.
Here is a link to an NJ.Com Article about this latest news: NJ.Com – NJDEP Denies Permits needed for PennEast Pipeline
On August 3, the Senate confirmed Trump’s two nominees to FERC, which restores its quorum and enables FERC to issue orders again. Since FERC always approves pipeline projects, we anticipate that PennEast will receive its certificate of public convenience and necessity in late August or early September. This will allow PennEast to start filing papers against landowners in order to take their land. However, even if FERC approves it, and even if PennEast takes land through eminent domain, the NJ Department of Environmental Protection (NJDEP) can still stop the project by denying a water quality certification that is required under section 401 of the Clean Water Act. We know this can be done because NY State stopped the Constitution Pipeline in April of 2016 by denying a 401 water quality certification.
The Delaware River Basin Commission (DRBC) can also stop the PennEast project by denying a permit for the project. Its members include the governors of NJ, NY, PA and Del. and the Division Engineer of the US Army Corps of Engineers (USACE).
HALT expects to challenge FERC’s certificate in a US Circuit Court of Appeals. While we cannot reveal the exact nature of this lawsuit, HALT expects to ask that court-ordered easements be removed for landowners who are members of HALT and who have their land taken through eminent domain proceedings. If you are interested in becoming a HALT member, please contact us.
Landowners who sign easement agreements with PennEast cannot have the easement removed from their deed – even if the pipeline is not built. Those easement agreements are assets that can be sold to another company.
Eminent domain is an individual homeowner issue, but HALT will try to help its members get answers to their questions. In addition, HALT members are banding together to contest eminent domain and minimize legal fees.
HALT will keep you informed as these events unfold. Our voices and actions remain the vital element that will stop this unneeded, unwanted, and harmful pipeline.
HALT summarizes Homeowners’ two separate but interrelated legal actions:
(1) HALT’s action to Challenge the FERC Certificate and
(2) Individual homeowners’ action to Contest Eminent Domain.
HALT ACTION – CHALLENGING THE FERC CERTIFICATE
When FERC issues a certificate of public convenience and necessity to PennEast, HALT expects to challenge the validity of the certificate in a US Circuit Court of Appeals. While the exact nature of this lawsuit cannot be revealed now, what is important for homeowners to know is if PennEast is not built, HALT expects to ask that court-ordered easements be removed for landowners who have had their land taken through eminent domain proceedings.
HALT is asking impacted homeowners to become members of HALT since they will benefit from this litigation against FERC. If you are unsure as to your membership status or you are interested in becoming a HALT member by donating, please contact 609-483-5530. Your donation will go toward this litigation.
INDIVIDUAL HOMEOWNERS’ LEGAL ACTION – CONTESTING EMINENT DOMAIN
PennEast will gain the right of eminent domain to acquire easements on properties along the route after obtaining a certificate of public convenience and necessity from FERC. Some landowners are forming groups to contest PennEast’s right to take their land. This is something that only impacted landowners may pursue. HALT cannot do this for homeowners because it’s an issue of individual land being taken. This is a separate and different legal action than having individual legal representation in eminent domain court.
Several homeowners have formed into groups to make the cost of this litigation affordable. HALT cannot recommend attorneys, but as we become aware of the groups that are being formed, we will make that information available to our members. You can then meet and decide whether you wish to join them.
CONNECTION BETWEEN HALT CHALLENGING FERC’s CERTIFICATE & HOMEOWNERS CONTESTING PENNEAST’S EMINENT DOMAIN CASES
Although separate, the above two actions are interrelated. If PennEast is not built, HALT intends to ask that court-ordered easements be removed for landowners who have their land taken through eminent domain proceedings. In addition, landowners expect to contest PennEast’s right to take their land. Some landowners believe that the combination of these two actions will increase the likelihood of success.
SELLING EASEMENTS TO PENNEAST OUTSIDE OF COURT
If you choose to sell your easement to PennEast, instead of going through eminent domain proceedings, you may receive more than going through eminent domain. However, selling also means that PennEast owns the easement and can use it or sell it for other pipelines. We suggest you speak with real estate professionals to understand the immediate and longer-term impact of a natural gas pipeline easement on your property value. Selling also allows surveyors on your property sooner than if you go through eminent domain.
The news that we’ve all expected and yet hoped would be put off for as long as possible has occurred – FERC has two new Commissioners. In actuality, it happened later than most initially thought!